By Accommodation Times News Services
By S. Selvakumar, Advocate, Bangaluru
Transfer of immovable by way of of sales, gift, will, release etc., presupposes that the documents relating of the title of the immovable property transferred are delivered to the transferee on completion of the transfer process. This is a statutory obligation. Section 55(3) of Transfer of Property Act, puts this responsibility on the seller.
However, in cases where only a portion of the property is sold and the seller retains the remaining portion, the vendor is entitled to retain the original documents, and provide to the purchaser only copies of the title documents.
Similarly, in cases where the property is transferred to different persons, in different lots, the transferee of greatest portion is entitled to hold the original documents of title and the remaining purchasers are provided with only copies of these documents.
Responsibilities of the seller or purchaser of larger portion of the property
In situations referred to above, the persons holding the documents, either the vendor or the person who holds the greatest portion has some responsibilities. He has to keep the documents in safe custody and in good condition. He has to make available the documents for inspection to other buyers and also furnish the true copies or extracts of such documents whenever required by these persons. But the expenses are to be met by the buyer who needs to make such inspection or seeks copies of documents or extracts of title deeds.
The responsibilities of the purchaser who holds the original title deeds are required to be recorded properly. The deed of transfer like sale, gift, will and release may contain such a covenant by the vendor in favour of purchaser or a separate deed for production of documents of title deeds may be executed by the vendor in favour of purchaser. The document, which records these obligations for safe custody of documents, providing copies and extracts thereof and for production of the same for inspection is called a “Deed Covenant for Production of Documents”.
In the deed of transfer of the greatest portion or of higher value an explicit covenant that the transferee shall keep the title documents safely and in good condition, produce for inspection whenever requested by other transferees of remaining portion of the property and furnish true copies or extract of the same to them should be incorporated. Similarly relevant covenant explicitly stating their rights for inspection of documents, for obtaining copies or extracts should be incorporated in the deeds of transfer of other transferees.
In the absence of inclusion of such a clause in the transfer deed, in case of the person holding a larger portion of the property, a separate covenant deed about his obligations would become necessary while in case of others either a common deed in favour of all other transferee’s jointly or separate deeds in favour of each may be executed.
Sometimes, different portions of property are not transferred in one lot. In such cases, the transferor should give a covenant for production of documents in each of the deeds of transfer and it should further provide that if and when the transferor hands over the documents to any other transferee at a later date he would procure a similar condition from such transferees.
Under a covenant of production of documents, the responsibility cast upon the owner for production of such documents is indefinite unless a condition is incorporated in the documents to state that this responsibility ceases after he parts with remaining portion of the property.
Flat Owners Association
Flats are constructed on a larger portion of the land and only apartments/flats are sold to different purchasers. Each purchaser will get original sale deed, which is executed in his name and registered and he will get copies of other original documents of title deeds of the land on which the apartment building is constructed since the original title deeds for the entire land will be only one and cannot be given to each and every purchaser. After formation of Flat Owners Association, the developer will hand over the original title deeds of the land to the Flat Owners Association. The promoters or property developer shall incorporate an appropriate clause in this regard in the individual sale deeds. The association has the responsibility of keeping these documents in safe custody and in good condition and to make these documents available for inspection by the flat owners or their agents and to provide copies, extracts of these documents to them whenever requested for. The bye-laws of the flat owners association shall contain the clause relating to safe custody, inspection and making available the copies or extracts of the original documents.
In case the covenant for custody and production of original title deeds is included in the transfer deed itself, no separate stamp duty is payable. If a separate deed is executed, it attracts the stamp duty as that of an agreement at the rates prescribed by the State Government.
The deed of covenant for production of documents does not require registration, but it is advisable to get it registered.
The author is an advocate who specializes in property matters. He can be reached on E-mail: firstname.lastname@example.org,